What is the Difference Between Legal Custody and Physical Custody?
Legal and physical custody determinations must be in the best interests of the child.
In a nutshell, legal custody is the right to make important decisions about a child’s welfare and, in most cases, claim the dependent care tax exemption. Physical custody determines where children spend their time on a day-to-day basis. Usually, the residential custodian has both legal custody and primary physical custody.
For a Sarasota family law attorney, legal and physical custody orders are never “final.” Physical and legal custody change frequently, mostly because most parents relocate frequently. Furthermore, parents often acquire or overcome physical, mental, or other disabilities. All these changes could significantly affect legal custody decisions as well as the physical custody balance between the parents.
Initial Determinations
If the parents disagree on legal and physical custody, the judge must divide these things based on the best interests of the child. Some factors to consider include:
- Child’s Preference: The factor that many people think of first is often a non-factor in legal and physical custody divisions. Frequently, children don’t express preferences, so they don’t get caught between parents. Furthermore, judges and social workers are very adept at smelling out staged preferences.
- Parental Preferences: Parents rarely express a preference during the divorce. Instead, they usually express a preference during the marriage, whether they know it or not. Parents who do not pay much attention to school-related items and medical events in a child’s life usually are not good legal custodians.
- Parental Ability: This factor measures the physical ability to be a good legal custodian. Frequently, the spirit is willing, but the flesh is weak. Many parents have good intentions, but a physical, mental, or other disability impairs their parenting skills. The onset or removal of a disability is a very common basis for custody modification. More on that below.
Usually, one parent has 100% legal custody. This parent has the right to receive child support, determine the child’s primary residence, and break a 1-1 tie in any legal custody matter, like what school the child attends.
Physical custody (parenting time) is usually divided between the parents. The standard every other weekend and every other holiday division remains popular in Florida. Other alternatives include:
- Block scheduling (children spend alternating periods of time with Parent A and Parent B),
- Empty nest (the children remain in place, and the parents swap residences), and
- Extended weekend (weekend visitations begin on Thursday night and end on Tuesday morning).
These alternatives are especially popular now that Florida has a co-parenting law. This law requires both parents to actively participate in the child-rearing process, at least in most cases.
Subsequent Modifications
A few final words on inevitable physical and legal custody modifications. A judge will modify existing legal and/or physical custody provisions if the change is substantial, permanent, and good faith related.
Usually, a substantial change is more than a 10% alteration in the number of overnight visits. To establish a permanent change, a Sarasota family law attorney usually points to a three-month pattern. We touched on good faith above. Parents cannot manipulate their children into changing legal or physical custody patterns.
Count on a Dedicated Sarasota County Family Law Attorney
Legal and physical custody orders are almost constantly in flux. For a confidential consultation with an experienced family law attorney in Sarasota, contact Carman & Finegan, P.A. We routinely handle matters throughout the Sunshine State.